Pitts v. State

Atkinson, Justice.

(After stating the foregoing facts.) This case was assigned to the writer to present the opinion of the majority of the court. It does not, in some respects, represent the writer’s opinion, as will appear in a dissent that follows.

While the evidence is wholly circumstantial, there is some evidence to authorize the verdict, and the trial judge having approved the same, there was no error in overruling the motion for new trial on the general grounds.

The first special ground is as follows: “Movant should have a new trial because the court erred in failing to charge the jury on the weight and consideration which should be given to the testimony relating to the conduct of track-dogs. Movant contends that the testimony as to the conduct of track-dogs constituted one of the chief and controlling issues in the case, and was the only testimony which could in any way connect movant with the scene of the crime. The failure of the court to charge the jury on this controlling issue in the case was prejudicial and harmful to the movant, in that the jury necessarily considered the conduct of the track-dogs in making their verdict, and necessarily believed that *323the bloodhounds trailed defendant from the scene of the crime. Movant contends that there was no testimony that the track-dogs recognized or identified movant as the person they had tracked. Movant further contends that the testimony showed that the track-dogs were not certain and reliable, and the failure of the court to give the jury specific instructions as to what they must find to be true before they could consider such evidence was erroneous and resulted in movant being convicted without sufficient evidence to authorize such conviction.”

The Code, § 6-901, provides that exceptions “shall specify plainly the decision complained of and the alleged error.” The foregoing ground of the motion for new trial does not meet this requirement. A ground of a motion for new trial alleging that “the court erred in not charging the jury the law of voluntary manslaughter,” has been held to be too vague and indefinite as an assignment of error to raise any question for determination by this court, as it does not specify wherein voluntary manslaughter was involved by reason of an assault, other equivolent circumstances, or by mutual combat. Smith v. State, 125 Ga. 300 (54 S. E. 124); Wilson v. State, 156 Ga. 42 (118 S. E. 427); Parham v. State, 180 Ga. 233 (2) (178 S. E. 648); Bryant v. State, 180 Ga. 238 (178 S. E. 651); Jackson v. State, 181 Ga. 753 (184 S. E. 279); Harris v. State, 184 Ga. 165, 168 (190 S. E. 554); Norris v. State, 184 Ga. 397 (191 S. E. 375). An assignment of error in the language of that part of the Code, § 26-1009, defining involuntary manslaughter has been held to be too indefinite to present any question for consideration, as it did not state distinctly whether the contention as to the involuntary manslaughter was based on an unlawful act or a lawful act. Williams v. State, 176 Ga. 372 (168 S. E. 5). Where the assignment of error stated that the court erred “in failing to charge or refer to or read in said charge to the jury section 26-1006 of the Code of 1933, defining manslaughter, and section 26-1007 of the Code of 1933, defining voluntary manslaughter, and Code section 26-1008, prescribing the punishment for voluntary manslaughter,” it was held insufficient as an assignment of error, for the reason that § 26-1006, includes both voluntary and involuntary manslaughter, and § 26-1007 includes voluntary manslaughter where there is mutual combat and where there is no mutual combat, and therefore the assignment of error fails to *324specify definitely wherein the court erred. Cornelious v. State, 193 Ga. 29 (2) (17 S. E. 2d, 156). Where it was alleged that the charge “omitted any instruction as to the legal nature of fraud,” this assignment of error was held insufficient, because the reviewing court could not determine the particular principle which the plaintiff in error might have had in mind. Spence v. Morrow, 128 Ga. 722 (58 S. E. 356). An exception that .the court failed to instruct the jury “‘relative to the right of defendant’ to defend himself against one who was attempting to forcibly take his property from his person,” was held to be too indefinite in Watkins v. State, 175 Ga. 473 (2) (165 S. E. 269). Also, an exception that a portion of the charge of the court restricted the jury to a determination of guilty or not guilty of the offense charged in the indictment, when the jury “could have found the defendant guilty of a minor offense embraced in the major offense alleged in the indictment,” was held to be too indefinite as “to what minor offense the charge excluded.” Kennedy v. State, 191 Ga. 22 (11 S. E. 2d, 179). For other cases where various assignments of error have been held to be insufficient see: McElwaney v. MacDiarmid, 131 Ga. 97 (6) (62 S. E. 20); Miles v. State, 182 Ga. 75 (4) (185 S. E. 286); Dickson v. Dortch, 183 Ga. 878 (2) (190 S. E. 26); Frazier v. State, 194 Ga. 657 (2) (22 S. E. 2d, 404).

The second ground of the motion alleges error in the following charge: “The court charges 3^ou that direct evidence is that which immediately points to the question at issue. Indirect or circumstantial evidence is that which only tends to establish the issue by proof of various facts sustaining by their consistency the hypothesis claimed. To warrant a conviction on circumstantial evidence, the proven facts must not only be consistent with the hypothesis of guilt, but must exclude every other reasonable hypothesis except that of the guilt of the accused.” The error complained of is that all the evidence was circumstantial, and that for the court to charge on direct evidence was misleading and confusing to the jury, and was calculated to impress on the jury’s mind that there was direct evidence against the movant. We can not agree with this contention. While the evidence connecting the movant with the commission of the crime was wholly circumstantial, still there were facts established by direct evidence, such as that the deceased was dead, and .that the accused was identified as *325being the person on trial. See Owens v. State, 139 Ga. 92 (76 S. E. 860); Wilburn v. State, 141 Ga. 510 (81 S. E. 444); Martin v. State, 193 Ga. 824 (20 S. E. 2d, 266); Moss v. State, 43 Ga. App. 109 (2) (158 S. E. 461); Faulkner v. State, 43 Ga. App. 763 (4) (160 S. E. 117).

The third ground alleges error in the following charge: “The court charges you further, gentlemen, that circumstantial evidence means a chain of circumstances that link together, and I charge you that a chain of circumstantial evidence is just as strong as its weakest link. Under the law circumstantial evidence authorizes a conviction just as much so as direct evidence. Circumstances are certain things that occur in the commission of a crime, and direct evidence is that which immediately points at the question in issue.” The gist of the complaint here is that -the expression, “under the law circumstantial evidence authorizes a conviction just as much so as direct evidence,” was calculated to impress upon the jurors’ minds that circumstantial evidence would authorize a conviction in the same manner as direct evidence. Taking the charge as a whole, the jury could not have been so misled. “No greater degree of mental conviction on the part of the jury is required to convict on circumstantial evidence than on direct testimony.” Cargile v. State, 136 Ga. 55 (3) (70 S. E. 873).

The fourth ground is covered by the general grounds.

Judgment affirmed.

All the Justices concur, except Atkinson and Wyatt, JJ., who dissent from the first and second divisions of the opinion, and Jenkins, P. J., absent on account of illness.